Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr., is *

substituted for former Attorney General Michael B. Mukasey as the

Respondent herein.

 Of the Tenth Circuit, sitting by designation **

United States Court of Appeals

For the First Circuit

No. 08-2213

JAMAL MAKIEH,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, *

Respondent.

ON PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Ebel and Lipez, Circuit Judges. **

Ilana Etkin Greenstein, Jeremiah Friedman, Maureen O’Sullivan,

Harvey Kaplan, and Jeanette Kain on brief for petitioner.

Michael H. Hertz, Acting Assistant Attorney General, and

Michelle Gorden Latour and Timothy G. Hayes, Office of Immigration

Litigation, on brief for respondent.

July 14, 2009
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EBEL, Circuit Judge. Jamal Makieh (“Makieh”) petitions

for review of the decision of the Board of Immigration Appeals

(“BIA” or “the agency”) dismissing his appeal. The BIA adopted and

affirmed the oral decision of the Immigration Judge (“IJ”), who

denied Makieh’s application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). Because

we lack jurisdiction to consider Makieh’s challenge as to the

asylum issue, and because the IJ’s decision denying withholding of

removal and CAT protection was supported by substantial evidence on

the record as a whole, we DISMISS the petition for review in part

and DENY it in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Makieh, a Syrian citizen, was born and grew up in

Latakia, Syria. Latakia is also home to the family of Syria’s

president, Bashar al-Asad, whom the State Department’s Country

Report on Human Rights Practices for 2005 described as

“authoritarian.” While Makieh is fearful of the president’s family

and of the Islamic extremism on the rise in his home country,

neither he nor any member of his family has ever been harmed by the

Syrian government or by anyone else in Syria. In the 1980s,

Makieh’s brother, Mohammed, and father, Ahmad, came to the United

States. Both subsequently became U.S. citizens. Makieh’s mother

and sisters continue to live in Syria; Makieh testified before the

immigration court that they do not face any threat of harm–or
The functions of the INS were transferred to DHS on March 1, 1

2003. See United States v. Earle, 488 F.3d 537, 539 n.1 (1st Cir.

2007). 

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actual harm–there because “they live a simple life away from

people, just family.”

In October of 1992, when Makieh was twenty-one years old

and facing conscription into the Syrian military, he entered the

United States on a non-immigrant (F-1) student visa. That visa

authorized him to remain in this country for “duration of status,”

or “D/S,” which meant “the time during which [Makieh] [wa]s

pursuing a full course of study at an educational institution

approved” originally by the Immigration and Naturalization Service

(“INS”), and later by the Department of Homeland Security (“DHS”),1

8 C.F.R. § 214.2(f)(5)(i). Makieh never enrolled in the

educational program for which he had been approved.

Remaining in the United States without permission, Makieh

lived with his brother and father. In July of 2000, Makieh’s

father, who by then had attained permanent resident status through

his son Mohammed, filed an I-130 Immigrant Petition for Relative

(the “visa petition”) on Makieh’s behalf. Pursuant to 8 U.S.C.

§ 1153(a)(2)(B), the visa petition named Makieh as the unmarried

adult son of a permanent resident. If granted, the visa petition

would have made Makieh eligible to apply for adjustment of his

residency status to that of lawful permanent resident. See Taing
-4-

v. Napolitano, 567 F.3d 19, 21 (1st Cir. 2009); see also 8 U.S.C.

§ 1255; 8 C.F.R. § 245.1. 

On January 30, 2003, the INS initiated removal

proceedings against Makieh. Just over six months later, Makieh

married a U.S. citizen, and in June of 2004, she filed a visa

petition on his behalf. Before that petition could be adjudicated,

however, the couple formally separated, and they divorced in

December of 2005. Makieh’s marriage also voided the earlier visa

petition filed by his father, because the marriage rendered Makieh

ineligible, under the Immigration and Naturalization Act (“INA”),

for consideration as an unmarried adult son of a permanent

resident, 8 U.S.C. § 1101(a)(39). Following Makieh’s divorce,

Ahmad Makieh filed a second visa petition for Makieh as his

unmarried adult son.

Just before his divorce, in October of 2005, Makieh had

filed an application for asylum and for withholding of removal,

cancellation of removal, and protection under the CAT. At his

final hearing before the IJ on the merits of this application,

Makieh testified that he had come to the United States to be with

his brother and father, and to embrace American freedom and

democracy. He also testified, in broad terms, as to his fear of

the Syrian government as motivating him to come to the United

States. Makieh further testified that he became truly afraid of

returning to Syria after the events of September 11, 2001, and the
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U.S. invasions of Iraq and Afghanistan that followed. The

administrative record includes evidence of an increase, since those

invasions, in violence perpetrated by Syrian extremists against

American interests. That violence included the bombing of the

American embassy in Damascus the month prior to Makieh’s final

hearing in immigration court.

According to Makieh, because he has spent his “adult

life” in the United States, Syrians–especially Islamic

extremists–will see him as being “like Americans,” and thus “like

a traitor or something.” As a result, he fears for his safety and

believes he will be tortured if he returns to Syria. However,

Makieh’s father, an American citizen, returns to Syria on a regular

basis for holy days; he generally spends several months at a time

there before returning to the United States. Ahmad Makieh has

never been harmed by the Syrian government or by Islamic

extremists. Makieh’s brother, also an American citizen, likewise

has returned to Syria on a number of occasions and has not been

harmed. Makieh himself has not returned to Syria since he left in

1992. Finally, Makieh, his father, and his brother all testified

or averred that Ahmad Makieh would suffer extraordinary hardship if

Makieh were removed to Syria, because Makieh is the principal

caregiver for his father.

The IJ ruled on Makieh’s application in an oral decision

handed down on October 24, 2006. The IJ first denied the
Those five grounds are “the alien’s race, religion, 2

nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1231(b)(3)(A).

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application for asylum as untimely, ruling that Makieh failed to

file his application within the one-year period, starting from the

date of arrival in the United States, mandated by the INA, 8 U.S.C.

§ 1158(a)(2)(B). The IJ explained that Makieh was not eligible for

consideration of an untimely application because (1) even if the

court accepted his contention that changed circumstances in Syria

materially affected his eligibility for asylum, Makieh failed to

file his application within a reasonable time after learning of

those changed circumstances; and (2) Makieh failed to show any

other extraordinary circumstances that would justify untimely

filing. See 8 U.S.C. § 1158(a)(2)(D).

The IJ went on to deny Makieh’s application for

withholding of removal and for protection under the CAT, finding

that Makieh failed to demonstrate a “clear probability”–i.e., that

it is more likely than not–that he would be persecuted on the basis

of one of five statutorily enumerated grounds, or that he would be 2

tortured. See 8 U.S.C. § 1231(b)(3)(A) (withholding of removal);

8 C.F.R. § 208.16(b) (same); id. §§ 208.16(c), 208.18 (implementing

the CAT); Castillo-Diaz v. Holder, 562 F.3d 23, 27 (1st Cir.

2009)(reciting “clear probability” standard for withholding of
The IJ went on to deny the application for cancellation of 3

removal, see 8 U.S.C. § 1229b(b), finding that Makieh’s removal

would not create an exceptional and unusual hardship on his elderly

father. Under the REAL ID Act, 8 U.S.C. § 1252(a)(2)(B), (D), we

lack jurisdiction to review the IJ’s or BIA’s discretionary

decision to deny cancellation of removal, unless the petitioner

raises a colorable constitutional claim or question of law. See

Elysee v. Gonzales, 437 F.3d 221, 223 (1st Cir. 2006); Bencosme de

Rodriguez v. Gonzales, 433 F.3d 163, 164 (1st Cir. 2005) (per

curiam). Makieh does not seek review of the denial of his

application for cancellation of removal.

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removal); Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005)

(applying same standard for protection under the CAT).3

On Makieh’s appeal, the BIA adopted and affirmed the IJ’s

decision in full, summarizing the decision and adding the

observation that Makieh’s alleged unawareness of the availability

of asylum did “not qualify for an exception to the 1-year filing

deadline” for asylum applications. The BIA dismissed the appeal on

August 21, 2008, and Makieh timely filed his petition for review

before this Court.

Makieh seeks review of the following: (1) the IJ’s

alleged failure to consider his argument that he is eligible to

have his untimely application for asylum considered on the merits

because his reliance on his father’s and wife’s petitions for visas

on his behalf constituted an extraordinary circumstance; and (2)

the IJ’s determination that it is not more likely than not that

Makieh would be persecuted or tortured if he were removed to Syria.
-8-

II. DISCUSSION

A. Scope and standard of review

In relevant part, § 1252(b)(4) mandates that

(A) the court of appeals shall decide the petition only

on the administrative record on which the order of

removal is based, [and]

(B) the administrative findings of fact are conclusive

unless any reasonable adjudicator would be

compelled to conclude to the contrary . . . .

8 U.S.C. § 1252(b)(4). Consistent with the statutory mandate,

“[w]e review the BIA’s [or IJ’s] findings of fact under the

deferential substantial evidence standard.” Scatambuli v. Holder,

558 F.3d 53, 58 (1st Cir. 2009). Under this standard, we will

reverse the BIA’s decision “only if a ‘reasonable adjudicator would

be compelled to conclude to the contrary.’” Castillo-Diaz, 562

F.3d at 26 (quoting 8 U.S.C. § 1252(b)(4)(B)). This means that we

will uphold the decision if it is “supported by reasonable,

substantial, and probative evidence on the record considered as a

whole.” Id. (quotation omitted). We review questions of law de

novo. Id.

When, as in this case, the BIA “adopts the IJ’s opinion

and discusses some of the bases for the IJ’s decision, we have

authority to review both the IJ’s and the BIA’s opinions.”

Scatambuli, 558 F.3d at 58 (quotation omitted). Within that

review, we should “judge the action of the BIA based only on

reasoning provided by the agency, not on grounds constructed by the
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reviewing court.” Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.

2004) (quotation, alteration omitted). As a result, “we will

remand if the agency fails to state with sufficient particularity

. . . legally sufficient reasons for its decision.” Id. (quotation

omitted).

B. Whether this court has jurisdiction to review the BIA’s

denial of Makieh’s asylum application as untimely

Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to

review the agency's determination that Makieh failed to show

extraordinary circumstances that could excuse the untimeliness of

his asylum application under § 1158(a)(2)(D). The REAL ID Act

provides an exception under which we do retain jurisdiction to

review constitutional claims or questions of law. 8 U.S.C.

§ 1252(a)(2)(D). However, the agency's determinations as to

timeliness and changed or extraordinary circumstances "are usually

factual determinations outside the court's jurisdiction." Odmar v.

Mukasey, 294 F. App'x 611, 613 (1st Cir. 2008) (unpublished)

(citing Hayek v. Gonzales, 445 F.3d 501, 506-07 (1st Cir. 2006)).

To overcome § 1158(a)(3)’s jurisdictional bar, Makieh

must “identif[y] a legal or constitutional defect in the [agency’s]

decision.” El-Labaki v. Mukasey, 544 F.3d 1, 5 (1st Cir. 2008).

"To trigger our jurisdiction, the putative constitutional or legal

challenge . . . must be colorable; that is, the argument advanced

must, at the very least, have some potential validity." Pan v.
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Gonzales, 489 F.3d 80, 84 (1st Cir. 2007); see also De Araujo v.

Gonzales, 457 F.3d 146, 154 (1st Cir. 2006).

1. Timing of asylum applications

An alien applying for asylum must “demonstrate[] by clear

and convincing evidence that the application has been filed within

1 year after the date of the alien’s arrival in the United States”

or by April 1, 1997, whichever is later. 8 U.S.C. § 1158(a)(2)(B);

8 C.F.R. § 1208.4(a)(2). However, 

[a]n application for asylum of an alien may be

considered, notwithstanding [the one-year limitations

period], if the alien demonstrates to the satisfaction of

the Attorney General either the existence of changed

circumstances which materially affect the applicant’s

eligibility for asylum or extraordinary circumstances

relating to the delay in filing an application within the

[statutory] period. 

8 U.S.C. § 1158(a)(2)(D). An applicant attempting to demonstrate

changed or extraordinary circumstances must also demonstrate that

he “filed the application ‘within a reasonable period’ given those

circumstances.” Oroh v. Holder, 561 F.3d 62, 66 (1st Cir. 2009)

(quoting 8 C.F.R. § 1208.4(a)(4), (5)).

2. Makieh’s petition for review

Before the IJ and BIA, Makieh argued both changed and

extraordinary circumstances as reasons he should be eligible for

consideration of his untimely filed application for asylum. The IJ

determined that even if Makieh were correct that circumstances in

Syria changed due to a rise in Islamic fundamentalism after

September 11, 2001, Makieh’s 2004 application still was not
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“file[d] within a reasonable time given those changed

circumstances.” Makieh does not challenge that determination in

his petition for review.

Makieh also argued before the agency, and argues in his

petition for review, that his mistaken reliance on his father’s and

wife’s visa petitions constituted an extraordinary circumstance

that should make him eligible for consideration of an untimely

filed application. Makieh urges that we have jurisdiction to

review the IJ’s and BIA’s decisions as to this issue because the

agency committed constitutional and legal error by not considering

this argument regarding his reliance on the visa petitions.

According to Makieh, the IJ and BIA violated his right to due

process by failing to “actually adjudicate every claim which he

present[ed].”

3. Analysis

Makieh fails to state a colorable constitutional claim or

question of law. See De Araujo, 457 F.3d at 154-55. In his oral

decision, the IJ said explicitly that Makieh “has stated that the

reason . . . he waited [to file the asylum application] w[a]s

th[at] in addition to the withdrawn visa petition by his U.S.

citizen wife, sometime in 2003, also, the fact that his father had

earlier submitted a visa petition for him in the year 2000.” 

Having concluded that Makieh did not timely file his application

after learning of the changed conditions in Syria after September
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11, the IJ went on to make the explicit finding that “[n]o other

extraordinary circumstances have been shown in this case, and the

Court, thus, finds that [Makieh] is barred from asylum under [INA]

Section 208(a)(2)(B).” (Id. at 64.)

As his oral decision makes abundantly clear, the IJ did,

indeed, consider Makieh’s argument as to his reliance on the visa

petitions. He also made an explicit finding that the evidence

Makieh presented failed to demonstrate “extraordinary

circumstances,” where Makieh had attempted to characterize his

reliance on the visa petitions precisely as an extraordinary

circumstance warranting an exception to the timeliness requirement.

Furthermore, even if the IJ could have been more exact in linking

his finding of no extraordinary circumstances with his

acknowledgment of Makieh’s argument as to the visa petitions, we

have made clear that “‘[a]lthough we expect an immigration judge to

make findings on all grounds that are necessary to support his

decision, those findings can be either explicit or implicit.’”

Pulisir v. Mukasey, 524 F.3d 302, 308 (1st Cir. 2008) (quoting

Rotinsulu v. Mukasey, 515 F.3d 68, 72-73 (1st Cir. 2008) in

parenthetical). Here, even if we were to conclude that the IJ did

not make an explicit finding as to the “extraordinary

circumstances” argument, we certainly would conclude that he made

an implicit finding in that regard.
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Nothing in the record suggests that the agency failed to

consider Makieh’s argument with respect to his reliance on the visa

petitions, much less that it committed constitutional error in this

regard. See Jamal v. Mukasey, 531 F.3d 60, 65-66 (1st Cir. 2008).

4. Conclusion as to Makieh’s application for asylum

Makieh’s petition for review of the denial of his

application for asylum does not present any colorable

constitutional claims or questions of law. Consequently, we lack

jurisdiction to consider this element of the petition for review.

C. Whether the BIA’s denial of Makieh’s application for

withholding of removal and for protection under the CAT

is supported by substantial evidence on the record as a

whole

1. Statutory standards for withholding of removal and

CAT protection

“Withholding of removal is available if ‘the alien’s life

or freedom would be threatened in the destination country because

of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.’” Sompotan v.

Mukasey, 533 F.3d 63, 68 (1st Cir. 2008) (quoting 8 U.S.C.

§ 1231(b)(3)(A); alteration omitted). An applicant for withholding

of removal may carry his burden of demonstrating this threat to his

life or freedom “by demonstrating past persecution, which gives

rise to a rebuttable presumption of future persecution, or by

showing that it is ‘more likely than not’ that [he] will face

future persecution based on one of the [five] statutory grounds.”
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Limani v. Mukasey, 538 F.3d 25, 31 (1st Cir. 2008) (citing 8 C.F.R.

§ 208.16(b)(1)(i), (b)(2)). “Persecution,” in turn, means

“mistreatment that extends beyond harassment, unpleasantness, and

basic suffering.” Sompotan, 533 F.3d at 68 (quotation, alterations

omitted). Finally, “it is critical that the petitioner[] show a

nexus between the alleged persecution and one of the statutorily

protected grounds.” Id. (quotation omitted). Establishing that

nexus requires a demonstration that “it is reasonable to believe

that the harm was motivated by a protected ground.” Id. (quotation

omitted).

To qualify for protection from removal under the CAT, “an

applicant must establish that it is ‘more likely than not that he

would be tortured if removed’” to the country at issue. Khan v.

Mukasey, 549 F.3d 573, 575 n.2 (1st Cir. 2008) (quoting Limani, 538

F.3d at 32; alterations omitted); 8 C.F.R. § 208.16(c)(2).

“‘Torture’ means ‘severe pain or suffering, whether physical or

mental . . . inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting

in an official capacity.’” Limani, 538 F.3d at 32 (quoting 8

C.F.R. § 208.18(a)(1)). 

2. The IJ’s and BIA’s decisions and the whole

administrative record

The IJ determined that Makieh failed to meet his burden

of establishing that it was more likely than not that he would be

either persecuted or tortured if he were removed to Syria. The IJ
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explained that no harm had ever come to Makieh while he was growing

up in Syria, that his American-citizen father travels to and from

Syria without difficulty or harm, and that Makieh’s “contention

that he has lived in this country and thus, is fearful of returning

does not demonstrate a clear probability that he would be

persecuted.” 

Having carefully reviewed the entire administrative

record on which the IJ and BIA based their decisions, we are

satisfied that those decisions are amply “supported by reasonable,

substantial, and probative evidence on the record considered as a

whole.” Castillo-Diaz, 562 F.3d at 26. While the record does

contain documents substantiating the recent growth of Islamic

radicalism in Syria, those documents–for instance, the Travel

Warning issued by the U.S. State Department following the September

12, 2006, bombing of the embassy in Damascus–specifically point to

dangers to “Americans” and “American interests.” The

administrative record simply does not support Makieh’s claim that

he would more likely than not be persecuted because he is a Syrian

who has lived in the United States for seventeen years, nor his

claim that he more likely than not would be tortured if he were to

return to Syria.

3. Conclusion as to Makieh’s application for

withholding of removal and for CAT protection

“That the record supports a conclusion contrary to that

reached by the [IJ and BIA] is not enough to warrant upsetting the
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[agency’s] view of the matter; for that to occur, the record must

compel the contrary conclusion.” Sompotan, 533 F.3d at 68

(quotation omitted). In this case, the administrative record does

not even support a conclusion contrary to that reached by the

agency, much less compel a contrary conclusion. Therefore, we DENY

Makieh’s petition for review of the agency’s denial of his

application for withholding of removal and for protection under the

CAT.

III. CONCLUSION

Because we lack jurisdiction to review the BIA’s denial

of Makieh’s application for asylum, and because the agency’s denial

of his application for withholding of removal and for protection

under the CAT is supported by substantial evidence on the

administrative record as a whole, we DISMISS Makieh’s petition for

review in part and DENY it in part.